How to Propose Mediation or Collaborative Divorce to Your Spouse

Want to try mediation or collaborative divorce, but not sure your spouse will go for it? Here's how to ask for the best chance of getting the answer you want.

By , Attorney · UC Berkeley Law

If you have decided to propose mediation or collaboration to your spouse, spend some time figuring out what you will say and how you will say it. Below are some suggestions, as well as some dos and don'ts to keep in mind.

Orally or in Writing

If you and your spouse communicate pretty well face to face or on the telephone, you may be able to make the suggestion to mediate or use collaborative law by just talking to your spouse about it. If your spouse has a way of reacting negatively to your ideas and suggestions during conversations, or if you and your spouse aren't on speaking terms, then make the proposal in writing.

Knowing What to Say

Whether you make the proposal in person, over the phone, or in writing, present mediation or collaborative divorce in a way that is neutral and nonthreatening. Provide your spouse with information without making your spouse feel like it's about being coerced or sold a bill of goods. If you propose mediation or collaboration in writing, consider writing a draft letter and having a trusted friend or adviser look it over before sending the final product to your spouse. If you make the proposal in person or on the telephone, plan ahead what you will say, and write down some notes about it. Consider practicing with a friend to make sure you set the right tone and cover all the points you need to make.

Offering Brochures and Other Materials

If you have brochures or other printed materials explaining mediation, consider giving them to your spouse to review. Same with any good websites or other information you've found. That way, both of you would be using the same frame of reference as you discuss whether, how, and with whom to mediate.

Proposing a Specific Mediator

Depending on your circumstances, you may want to start the process of trying to find a mediator before you suggest mediation to your spouse, or you may want to wait until your spouse can take an active role in the selection process.

If you have already compiled a list of mediators, with information about their charges and procedures, pass that along and then let your spouse choose from the list. This gives your spouse the message that you are willing to share information and lets your spouse have a say in what happens. That way, the mediation is more likely to start off on a cooperative note.

Whether you should contact the potential mediators in advance depends on whether your spouse will view this as an attempt on your part to sway the mediator to your side rather than a neutral request for general information. If you are in doubt about this, it might be best to avoid prior contact with the mediators you want to propose. You can usually find out something about mediators in your area without speaking with them directly. Then you can tell your spouse what you've found out and assure your spouse that you haven't compromised the mediator's neutrality by making the initial contact.

If your spouse is likely to view with suspicion anyone you suggest, propose mediation in general terms and offer to consider a mediator suggested by your spouse. You can still check out potential mediators in the area so that you can make an informed decision on your spouse's suggestion, but you can avoid giving your spouse the feeling of being railroaded or dictated to.

If you are proposing collaborative divorce, and if neither you nor your spouse has retained an attorney, there's nothing wrong with giving your spouse a brochure or other information listing local attorneys with experience in collaborative practice. However, avoid suggesting particular attorneys for your spouse, unless your spouse specifically requests this.

Dos and Don'ts of Proposing Mediation or Collaboration

However you decide to go about proposing mediation or collaborative divorce, it is important to convey to your spouse your willingness to consider his or her point of view on whether, when, how, and with whom to start the process. This sets the stage for successful negotiations once you get started. Here are seven simple rules to remember:

Do your homework. Find out about mediation or collaboration, how it works, what it costs, and who offers it in your area. Read a book like Divorce Without Court, by Katherine Stoner. Talk to people knowledgeable about mediation and collaboration.

Do give neutral reasons to mediate or collaborate. Point out that mediation or collaboration is inexpensive for both of you and that it will help you come up with a fair and amicable settlement.

Do offer to share information. Tell your spouse what you've learned about mediators or collaborative lawyers in your area. If you have brochures or other printed materials from potential mediators or collaborative professional groups, offer copies to your spouse.

Do give your spouse choices. Demonstrate your willingness to be flexible from the beginning by asking your spouse's opinion about your proposal. If you are proposing mediation, provide a list of several mediators to choose from, and ask your spouse to suggest a mediator.

Don't try a hard sell. Give your spouse a short summary of why you think using mediation or collaboration is a good idea, offer to share the information you have, and give your spouse the choice of mediators. Then back off and wait for your spouse's answer. Your spouse is more likely to participate fully in the mediation or collaboration if there's no feeling of pressure.

Don't threaten or patronize. It's one thing to say that mediation or collaboration will cost less and be less acrimonious than litigation. It's quite another to say that you will take your spouse to court and to the cleaners if your offer to mediate or collaborate is turned down. Remember, mediation and collaborative law are voluntary. Show your spouse you understand this by avoiding ultimatums. And try not to sound like an expert on the subject when you share the information you've collected. Mediation—or collaboration—is a negotiation between equals. You don't want your spouse thinking you feel superior before you've even started.

Do try again. If your spouse doesn't respond to your proposal, or turns you down, don't give up on the idea. Your spouse may need a reminder, or the time may not be quite right. Look for an opening and ask again. No matter how far along you are in the process of getting a divorce, mediating an agreement on the remaining issues—or settling them collaboratively—can save time and money.

Adapted from Divorce Without Court: A Guide to Mediation and Collaborative Divorce, by Katherine E. Stoner.